Employment-Fifth Circuit Rules That Use Of Fluctuating Workweek Method Of Calculating Overtime Is Improper

In Black v. Settlepou, P.C., No. 12-10972 (5th Cir. 2013), the plaintiff, Betty Black (“Black”), is a former employee of the defendant, SettlePou, P.C. (“Settlepou”). After a jury found that SettlePou had misclassified Black as exempt from the Fair Labor Standards Act (the “FLSA”), Black became eligible for an award of unpaid overtime wages. In computing the overtime payment award, the district court applied the “Fluctuating Workweek” (the “FWW”) method of calculating overtime, by multiplying the number of overtime hours Black worked by one-half of her regular rate of pay. Black appeals, contending that the FWW method of calculating overtime is not warranted here.

In analyzing the case, the Fifth Circuit Court of Appeals (the “Court”) found that the employer and employee here had not agreed to a fixed weekly wage for fluctuating hours. As such, the FWW method of calculating overtime should not apply here. Accordingly, the Court reversed the district court’s judgment, and remanded the case back for correct overtime calculation.